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ANALYSIS OF JULY 1 AND 8, 2008 CAV OPINIONS

[Posted July 8, 2008] Four new published opinions arrive today from the Court of Appeals of Virginia; three of these involve criminal appeals, with the Commonwealth batting 1.000 today.

Domestic relations
The lone domestic case today is Benzine v. Benzine, an appeal in which only one side of the case was briefed and argued. In my experience, the appellate court’s don’t like to review cases in this fashion, as seeing only one side of a legal issue can skew results, for obvious reasons. But today’s case results in a published opinion, which may be more as an admonishment to trial courts (and lawyers drafting divorce decrees) than as an indicator that the ruling here is especially citeworthy.

It’s simple, really: Code §20-107.1(F) requires the trial court to make certain findings of fact and conclusions of law before awarding spousal support. In this case, the final decree merely adopted the commissioner’s report, overruled exceptions thereto, and awarded support to the wife. On the husband’s appeal, the Court of Appeals today reverses, noting that the decree doesn’t do what the statute says it must do. The case is remanded for the court to consider the required factors and to make its own judgment call on whether to award support, and if so, how much.

There is language in this opinion that reaffirms the duty of a trial court to make its own judgment as to support; it cannot simply delegate to commissioners the right to make these judgment calls. The appellate court recognizes in today’s opinion the importance of the commissioner system in providing assistance to the court, but it cautions that there is a limit to how much authority those commissioners really have.

Criminal law
It’s black letter law that when a suspect invokes his right to counsel during a custodial interrogation, “all questioning must cease.” But in numerous cases, the invocation of that right proves to be ambiguous at best; in those cases, the courts decline to apply the exclusionary rule to subsequent incriminating statements. We get another example of that today in Zektaw v. Commonwealth, involving convictions of rape and abduction.

Zektaw had a hot-and-cold relationship with his girlfriend, but the record indicated that on February 9, 2006, it was stuck on cold. The girlfriend invited him over for lunch, but the couple was clearly feuding at the time. When she found herself having to resist his sexual advances that day, she told him that “her cousin was asleep in the bedroom.” But there was no cousin in the vicinity, and when Zektaw found that out, he got violent, attacking the girlfriend and raping her. She swore out a warrant, and when Zektaw learned about that, he just showed up at a police station and said, “Somebody here wants to talk to me . . .?”

Two detectives went over his Miranda rights and had him execute a waiver form. When one of the detectives asked him if he then wanted to say anything, he responded, incongruously, “Right, and I’d really like to talk to a lawyer –

[Editorial note – If he had stopped here, and kept his mouth shut thereafter, then we would have no case named Zektaw v. Commonwealth. This is probably an effective invocation of the Sixth Amendment right to counsel. But like many another ne’er-do-well, the shutoff switch on his vocal cords wasn’t working that day. Behold.]

“. . . because this – oh, my God, oh, my Jesus, why?” [See?] He then just started conversing with the officers, and blabbed a number of blabs that he later regretted after getting actual legal assistance. The trial court denied his motion to suppress, and today the Court of Appeals affirms that ruling. Comparing this quasi-invocation with others in previous Supreme Court cases, the appellate court concludes that this was at best an ambiguous comment, noting that it might simply have been “an exclamation of disbelief, or of his awareness, regarding the situation in which he found himself.” That, precedent dictates, ain’t enough, so the confession was properly admitted.

There is also a separate discussion in today’s opinion of a jury instruction issue, in which Zektaw sought a model jury instruction that would have required the jury to find that he had “dominated” the victim instead of merely “exercising such control of her as to overcome her mind and overbear her will.” The court refuses this request on two grounds. First, it notes previous Supreme Court holdings that caution against taking language from appellate opinions and grafting it into instructions. Second, it observes that dominate is merely another word for control. Thus, all Zektaw wanted was a redundancy, and there’s no way the court will reverse a conviction on that basis; the court affirms the trial court’s exercise of discretion in crafting the jury charge.

The CAV published opinions that have significant precedential value, and those interpreting statutes the court has not previously addressed. (It also publishes all en banc rulings, but that’s not relevant to the next case.) In this context, I have to confess that I really don’t know why Wright v. Commonwealth is published. It’s a search and seizure case involving a traffic roadblock, and a drug-sniffing dog. The court rules that the roadblock was appropriately set up so as to ensure nondiscriminatory enforcement, and was limited in duration and suitably constrained as to officers’ discretion. Clearly-established caselaw establishes that the police did this one right, and Wright’s lawyer conceded in oral argument that there was nothing wrong with the stop.

But when an officer asked Wright to pull over for a broken brake light, so he could write her a ticket, the drug dog went to work. While the first officer was writing the ticket, the dog sniffed the car and “alerted” on it. That led to a search of the car, the discovery of cocaine in a purse, and an acknowledgement by Wright that the purse was hers. So what’s not to like about this scenario?

Wright argued that the use of the dog wasn’t listed in the police protocol for the roadblock, so that search was unreasonable. Again relying on clear precedent (the US Supreme Court good enough for you?), the court finds that exactly this sort of police-dog use is perfectly permissible. It therefore predictably affirms, holding that the use of the dog “did not constitute a search within the meaning of the Fourth Amendment.”

The final criminal case of the day is Fowlkes v. Commonwealth, involving two murder convictions. During the trial, the prosecutor, presumptively a rookie, inquired into a prosecution witness’s plea agreement, which required him to submit to a polygraph test if required by the government. In fact, the government never got around to hooking him up to the machine. The prosecutor evidently sought to establish that the government felt strongly enough that this witness was telling the truth that it was unnecessary to test him.

The first couple of questions, dealing with preliminary matters about the provision, went without a defense objection. When the prosecutor started to get to the heart of what he wanted to establish, the defense objected; the trial court quite properly sustained that. But that didn’t deter the prosecutor, who asked another question along the same lines. This time, the defense didn’t have to object; the trial judge ruled that the question was improper. A third foray into forbidden territory ensued, at which point the judge sent the jury out and lit into the prosecutor, to the point of telling his boss, the Commonwealth’s Attorney (who was conveniently in the courtroom), “You keep him under control or get him out of this case.”

My perceptive readers will discern that this prosecutor is not doing particularly well in the Making a Favorable Impression Department. The question is, did the improper questions rise to the level where they required a mistrial? The trial judge felt that a cautionary instruction to the jury would suffice, and he gave that. The jury went ahead and convicted Fowlkes anyway.

On appeal, the case comes with a presumption that the trial court did the right thing, and so did the jury. (Under well-established precedent, the jury is presumed to have obeyed cautionary instructions to disregard improper evidence or argument.) The appellate court, viewing the evidence in the light most favorable to the Commonwealth, proceeds to determine whether the improper evidence “was so impressive that it probably remained on the minds of the jury and influenced their verdict.”

Today, the Court of Appeals decides that it was not. The key reason for this is that the defense had not objected to the initial line of questions about the polygraph provisions in the plea agreement (we all know that those objections are deemed waived under Rule 5A:18), and the only objections the defense did raise were to questions that duplicated the evidence that the jury already had. In addition, the CAV points to the trial court’s swift and certain rejection of the polygraph evidence, and its emphatic cautionary instruction. Finally, the court notes that the testimony of this particular witness largely duplicated the great weight of other evidence in the case – another witness independently gave the same testimony about Fowlkes’s self-incriminatory statements. Accordingly, the court affirms the convictions.

Before you go jumping to conclusions about a blanket rule in such cases, here’s the small print: “[U]nder the particular facts of this case . . .” By using this language in the concluding paragraph of today’s opinion, the court notes that these issues have to be analyzed one at a time. Note that this decision rests on a combination of at least three factors. If your case doesn’t contain one of those (for example, if there was no other corroborating evidence of guilt), then this decision might be of little help to you.

* * *

While I was away last week, the court issued two short published opinions. Both of those were in criminal cases, and as with today’s set, the Commonwealth has a perfect record. In Ellis v. Commonwealth, the court presages today’s decision in the Wright case by approving a police officer’s de minimis delay (one minute or less) in securing a drug sniffing dog to the scene of a traffic stop. And in Mills v. Commonwealth, the court decides that a purse-snatcher in a vehicle who grabs a purse and then drives off, dragging the purse’s owner by the arm some 30 feet, did, in fact, commit robbery instead of simple larceny. The test here is whether the purse-snatcher encountered any meaningful resistance before making off with the goods. (Believe it or not, if a purse-snatcher just walks up and grabs a purse from a surprised owner, who doesn’t have time to resist, that’s just larceny; not robbery.) Here, the dragging of the owner indicated that she tried to hold on to her property, but was overcome by force, and that’s enough to convert the crime into the far more serious offense of robbery.